Professional Documents
Culture Documents
3d 1290
14 IER Cases 1059, 12 Fla. L. Weekly Fed. C 293
After being fired from her job at the Lee County Housing Authority ("LCHA"),
Luz Gonzalez ("Gonzalez") brought suit against the LCHA and against Patricia
Moran ("Moran"), the LCHA Executive Director, in her individual and official
capacities, pursuant to 42 U.S.C. 1983 and 42 U.S.C. 3617, a provision of
the Fair Housing Act, 42 U.S.C. 3601-3619, 3631. Moran moved for
summary judgment in her individual capacity on the basis of qualified
immunity. The district court denied this motion, and Moran filed an
interlocutory appeal.1
I.
3
On September 20, 1995, Moran called Gonzalez into Moran's office and
criticized Gonzalez for failing to fill apartment vacancies at the LCHA during
the prior two months.7 An argument ensued, in which Gonzalez raised her
voice.8 On September 21, Moran presented Gonzalez with a letter that stated in
part: "This is to advise you that under no circumstance will I ever again tolerate
your violent outburst of yesterday.... [I]f anything like that occurs again you
will be terminated immediately."9 Gonzalez refused to sign the letter.
10
Gonzalez then filed suit against the LCHA and against Moran in her official
and individual capacities. Gonzalez claimed that Moran, in her individual
capacity, violated: (1) Gonzalez's First Amendment rights by terminating
Gonzalez's employment in retaliation for her "objections and complaints about
the operations of the Defendants," giving rise to a claim under 42 U.S.C.
1983;17 and (2) 42 U.S.C. 3617 by terminating Gonzalez's employment in
retaliation for her "complaints and refusal to participate in the discriminatory
rental practices of the Defendants."18 Moran moved for summary judgment in
her individual capacity on both claims. The district court, without elaboration,
ruled that "issues of material fact" precluded the court from granting summary
judgment in Moran's favor.19 Moran appeals the district court's denial of that
motion.
II.
A.
11
B.
12
13
14
14
party may not rest upon the mere allegations or denials of the adverse party's
pleadings, but ... must set forth specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). If the non-moving party fails to "make a
sufficient showing on an essential element of her case with respect to which she
has the burden of proof," then the court must enter summary judgment for the
moving party. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In determining
whether genuine issues of material fact exist, we resolve all ambiguities and
draw all justifiable inferences in favor of the non-moving party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d
202 (1986).
C.
15
16
18
19
At the outset, we note that our review of Gonzalez's section 1983 claim
concerns solely Gonzalez's letter to Moran on September 28. Although
evidence indicates that Gonzalez and Moran previously argued about
compliance with discrimination rules, see infra Part IV.B.2, we are unable to
perform a Pickering review of Gonzalez's speech on those occasions because
the record does not disclose the "manner, time, and place" of Gonzalez's
statements. See Connick, 461 U.S. at 150-55, 103 S.Ct. at 1692-93 (describing
21
22
In large part, the letter simply blames Moran for creating a poor working
atmosphere at the LCHA.23 We thus conclude that much of the letter does not
touch upon matters of public concern. See Connick, 461 U.S. at 148-49, 103
S.Ct. at 1690-91 (stating that most of the elements of an employee's
questionnaire were "mere extensions of [her] dispute over her transfer" and
holding that "the First Amendment does not require a public office to be run as
a roundtable for employee complaints over internal office affairs").
23
It is unclear whether this portion of the letter can "be fairly characterized as
constituting speech on a matter of public concern...." Connick, 461 U.S. at 146,
103 S.Ct. at 1690. On the one hand, a public official's authorization of
discriminatory rental practices unquestionably is an important matter of general
public interest. See, e.g., 42 U.S.C. 3601 ("It is the policy of the United States
to provide ... for fair housing throughout the United States."); cf. Connick, 461
U.S. at 149, 103 S.Ct. at 1691 (holding that the pressuring of public employees
to work in political campaigns is a matter of public concern). Moreover, a
public employee's statement may satisfy the public concern requirement even
where, as here, the employee speaks within the workplace, after an adverse
employment decision, about a specific matter that had not drawn significant
public attention prior to her speech. See Connick, 461 U.S. at 149, 103 S.Ct. at
1691.
28
On the other hand, three unrebutted facts suggest that Gonzalez's purpose in
writing this part of the letter was to blame Moran for Gonzalez's dissatisfaction
with the stressful conditions of her own employment. First, this portion of the
letter does not specifically address the legal rights of the potential tenants, but
rather concerns (a) Gonzalez's own aggravation and confusion, (b) Moran's
complaints to Gonzalez, and (c) the arguments between Moran and Gonzalez.25
Second, the letter as a whole focuses on Gonzalez's theory that Moran, by
breaking rules, was harming the office environment.26 Third, Gonzalez's
"complaints ... were in large measure conveyed in light of a reprimand, still
fresh, which appellant believed unfairly attributed responsibility to her...."
Pearson v. Macon-Bibb County Hosp. Auth., 952 F.2d 1274, 1278 (11th
Cir.1992).27 Viewed in combination, these facts indicate that Gonzalez, even
though she was involved in a continuing battle with Moran over Moran's
discriminatory directives, see infra Part IV, wrote this portion of the letter in
order to "further her own private interest," rather than "to raise issues of public
concern," Morgan, 6 F.3d at 754; see Ferrara v. Mills, 781 F.2d 1508, 1515-16
(11th Cir.1986) (holding that the public concern requirement was not satisfied
where the teacher's speech was based on the teacher's personal concerns that
collegiate registration contributed to his inability to enforce discipline).
29
IV.
30
Gonzalez also claims that Moran violated 42 U.S.C. 3617, a provision of the
Fair Housing Act, 42 U.S.C. 3601-3619, 3631, by terminating Gonzalez's
employment "in retaliation of her complaints and refusal to participate in the
discriminatory rental practices of the Defendants."28 According to section 3617,
it is unlawful to
31
coerce,
intimidate, threaten, or interfere with any person in the exercise or enjoyment
of, or on account of his having exercised or enjoyed, or on account of his having
aided or encouraged any other person in the exercise or enjoyment of, any right
granted or protected by section 3603, 3604, 3605, or 3606 of this title.
32
A.
33
35
Applying the reasoning of Scheuer, we hold that Moran is entitled to assert the
defense of qualified immunity in this section 3617 action. Neither the text31 nor
the legislative history32 of section 3617 indicates that Congress intended to
abrogate the qualified immunity to which executive-branch officials were
entitled under common law. Because of this fact and in light of the importance
of protecting officials' decision-making capacity,33 we conclude that executivebranch officials sued in their individual capacities under section 3617 may
assert the defense of qualified immunity.
36
In reaching this conclusion, we follow the only other court of appeals that has
considered the matter. See Samaritan Inns, Inc. v. District of Columbia, 114
F.3d 1227, 1238-39 (D.C.Cir.1997) (allowing public officials sued in their
individual capacities under section 3617 to plead the affirmative defense of
qualified immunity); see also Baggett v. Baird, No. Civ.A.4:94CV0282-HLM
(N.D.Ga. Feb. 18, 1997 unpublished opinion) (granting summary judgment on
the basis of qualified immunity in a section 3617 action). Our holding also is
consistent with various decisions in which this court and others have held that
public officials are entitled to assert the defense of qualified immunity when
sued under a federal statute other than section 1983.34 Furthermore, we do not
believe that Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785
(11th Cir.1992), counsels a contrary conclusion.35B.
37
Having determined that Moran may assert a qualified immunity defense against
Gonzalez's section 3617 claim, we must ascertain whether, viewing the
39
the hurdle of qualified immunity, see Lassiter v. Alabama A & M Univ., Bd. of
Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (en banc); Jenkins, 115 F.3d at
825 n. 3, we have acknowledged the possibility that some federal statutory
provisions will be sufficiently clear on their own to provide defendants with fair
notice of their obligations under the law, see Santamorena v. Georgia Military
College, 147 F.3d 1337, 1340 n. 6 (11th Cir.1998); Lassiter, 28 F.3d at 1150 n.
4.36 Cf. United States v. Lanier, 520 U.S. 259, ----, 117 S.Ct. 1219, 1227, 137
L.Ed.2d 432, ---- ("[G]eneral statements of the law are not inherently incapable
of giving fair and clear warning, and ... may apply with obvious clarity to the
specific conduct in question, even though 'the very action in question has [not]
previously been held unlawful.' ") (quoting Anderson v. Creighton, 483 U.S.
635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Section 3617 provides
just such an explicit statement of what the Fair Housing Act demanded of the
defendant in this case.
40
Section 3617 renders it unlawful to "interfere with any person ... on account of
his having aided or encouraged any other person in the exercise or enjoyment
of ... any right granted or protected by section 3603, 3604, 3605, or 3606 of this
title." Section 3604, in turn, bars racial discrimination in the "terms, conditions,
or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith...." 42 U.S.C. 3604(b). Section 3617, read in
conjunction with section 3604, therefore, straightforwardly states the
unsurprising (and presumably uncontroversial) proposition that the Fair
Housing Act prohibits "interfering" with any person because she "aided or
encouraged" another person's exercise of her right to rent property free from
racial discrimination.37 Any reasonable public official, having read the plain
terms of this statute, certainly would have understood that federal law makes it
unlawful to terminate an employee for refusing to discriminate against potential
tenants on the basis of race. To the extent any federal statute, standing alone,
can provide a potential defendant with concrete notice, "that is, truly compel
(not just suggest or allow or raise a question about), the conclusion for every
like-situated, reasonable government agent that what [she] is doing violates
federal law," we believe that section 3617 provides such notice in the
circumstances of this case. Lassiter, 28 F.3d at 1150. Cf. Baggett, 1997 WL
151544, at * 22. 38 Just as generally stated constitutional principles, standing
alone, without materially similar case support, would have provided fair
warning to the Supreme Court's hypothetical welfare officials who sold foster
children into slavery, see Lanier, 520 U.S. at ----, 117 S.Ct. at 1227-28, the
statutory provisions at issue in this case, standing alone, provide fair warning
and thus clearly establish that the Fair Housing Act prohibits firing an
employee for refusing to discriminate against tenants on the basis of race.
41
Alternatively, even if a public official credibly could argue that the language of
the statute provided insufficient notice, its implementing federal regulation,
adopted in 1989, removes all doubt about whether federal law makes it illegal
to fire an employee for refusing to discriminate on the basis of race. As this
regulation pointedly restates, section 3617 prohibits
42
[t]hreatening
an employee or agent with dismissal or an adverse employment action,
or taking such adverse employment action, for any effort to assist a person seeking
access to the sale or rental of a dwelling or seeking access to any residential real
estate-related transaction, because of the race, color, religion, sex, handicap, familial
status, or national origin of that person or of any person associated with that person.
43
44
45
As this line of cases expressly acknowledges, however, the logic they employ
does not apply where a statute or regulation specifically creates the plaintiff's
cause of action, because in those instances, government officials are on notice
of the parameters of their exposure to suit and liability. See Davis, 468 U.S. at
194 n. 12, 104 S.Ct. at 3019 n. 12 ("[I]f a statute or regulation does give rise to
a cause of action for damages, clear violation of the statute or regulation
forfeits immunity only with respect to damages caused by that violation.");
Childress, 825 F.2d at 1553 ("[N]either federal nor state officials lose their
immunity by violating the clear command of a statute or regulation ... unless
that statute or regulation provides the basis for the cause of action sued upon.")
(quoting Davis, 468 U.S. at 194 n. 12, 104 S.Ct. at 3019 n. 12); Harbert, 157
F.3d at 1285 (same).40 As the Supreme Court subsequently described its
decision in Davis:Davis, in short, concerned not the authorities a court may
consider in determining qualified immunity, but this entirely discrete question:
Is qualified immunity defeated where a defendant violates any clearly
established duty, including one under state law, or must the clearly established
right be the federal right on which the claim for relief is based? The Court held
the latter.
46
Elder v. Holloway, 510 U.S. 510, 515, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344
(1994). Thus, where a plaintiff's claim arises under a specific statutory cause of
action, a regulation interpreting that statute can provide sufficient notice to
abrogate a defendant's qualified immunity.41 Gonzalez's claim in this case
asserts, not some general constitutional claim premised on Moran's breach of a
duty established in an administrative regulation, but a specific violation of the
federal statute and regulation under which she brought suit. See R1-15,
Amended Complaint, p 33, at 8 (bringing suit pursuant to 42 U.S.C. 3613).
47
48
Accordingly, we hold that sections 3617 and 3604, which were in effect in
The remaining question is whether the evidence, viewed in the light most
favorable to Gonzalez, indicates that Moran should have known that her actions
violated clearly established prohibitions of the Fair Housing Act. We review
this issue under the framework established in Celotex Corp. v. Catrett, 477 U.S.
317, 322-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986). See supra Part
II.B.
50
51
Gonzalez, of course, bears the burden of demonstrating that Moran should have
known that her actions violated clearly established prohibitions of section 3617.
Thus, under Celotex, Moran may prevail on her summary judgment motion
without bringing forth "affidavits or other similar materials" negating
Gonzalez's claim. See 477 U.S. at 323, 106 S.Ct. at 2553. Nonetheless, Moran
must at least " 'show[ ]'--that is, point[ ] out to the district court--that there is an
absence of evidence to support" Gonzalez's case. See id. at 325, 106 S.Ct. at
2554 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598,
1609, 26 L.Ed.2d 142 (1970)).
52
We are not convinced that Moran satisfied her initial summary judgment
burden. In her memorandum in support of her motion for summary judgment,
Moran cited no record evidence that would rebut Gonzalez's section 3617
claim, and it is doubtful that Moran "show[ed]" or "point[ed] out" the "absence
of evidence to support" Gonzalez's claim. See Celotex, 477 U.S. at 325, 106
S.Ct. at 2554. For example, in responding to the allegation that Gonzalez
objected to Moran's directive to deny housing based on race,48 Moran simply
asserted that Gonzalez was referring to two white women with black babies and
that these women ultimately did receive LCHA housing.49 Gonzalez, however,
need not show that applicants actually were denied housing based on race,50 but
rather that Moran fired Gonzalez based in significant part on Gonzalez's efforts
to rent public housing in a non-racially discriminatory manner.51 Because
Moran does not even address Gonzalez's claim that Moran terminated
Gonzalez's employment "in retaliation of her complaints and refusal to
participate in the discriminatory rental practices of the Defendants,"52 Moran
appears to have failed to point out the absence of evidence supporting
Gonzalez's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554.53
53
Even assuming, arguendo, that Moran did meet her Celotex burden, we would
hold that Gonzalez did not "rest upon the mere allegations" of her complaint,
but rather "set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). In her memorandum in opposition to Moran's motion
for summary judgment, Gonzalez relied upon the affidavit that Gonzalez
previously filed in support of her motion for partial summary judgment.54 That
affidavit contained several important pieces of evidence. First, Gonzalez
testified that Moran directed her to engage in actions that, in Gonzalez's view,
violated the anti-discrimination laws that apply to public housing programs.55
54
55
Third, attached to the affidavit and incorporated by reference therein60 was the
letter written by Gonzalez to Puccio on October 9, 1995.61 In that letter,
Gonzalez stated that during August and September 1995, Gonzalez
"confront[ed]" Moran about the fact that Moran wanted Gonzalez to take
certain actions that violated HUD rules and regulations.62 These confrontations
concerned, inter alia, Moran's desire to discriminate against specific potential
tenants: two white women with black children and an elderly black man.63
56
This inference finds additional support in the termination letter that Moran
herself sent to Gonzalez. As a reason for Gonzalez's termination, the letter cites
Gonzalez's "criticism of orders, rules and policies,"65 and Moran has brought
forth no evidence showing that the phrase "orders, rules and policies" refers to
anything other than Moran's own discriminatory directives.
58
V.
59
For the foregoing reasons, we REVERSE the district court's denial of summary
judgment to Moran in her individual capacity as to Gonzalez's section 1983
claim; we AFFIRM the district court's denial of summary judgment to Moran in
her individual capacity as to Gonzalez's section 3617 claim; and we REMAND
the case for further proceedings consistent with this opinion.
APPENDIX A
60
long, you do not want me to house them, because it will become a negative rent.
69 9] If you remember, that the times that you and me had argue is because you had
[p
forced me to discriminate, or rip-off people (meaning that if someone moves after
the 5th. of the months, you do not want me to pro-rate the rent and charge them from
the 1st. of the month.)[p 10] You can not keep blaming me for this place starting to
fall apart. You owe all this to yourself, because you are the one that bend the rules
all the time. More examples are, if I give a tenant a violation, which is part of my job
and the tenant does not like it, they come to you and then you will not back me up,
causing for the tenants not to respect my position. Another good example will be last
year when I did the re-certification inspections that I had found Ms. Loretta Huff
with a cat inside the unit. After I mentioned the tenant she needed to get rid of the
pet, she called you and then you called me in your office to tell me to "stay away
from the elderly site". A few months ago you received a complaint from a tenant at
the elderly site about so many cats around, and then you wanted me to take care of
the problem. There are plenty of violation over on that site, but if I try to do my job,
is either you get upset or your good friend Mr. Edward Kross (board member that
you recommended), will come to this office and complaint about me doing my job
and I will be asked to back out.
70 11] Also, when Mr. Willie Christmas, tenant from Charleston Park, Alva took you
[p
to Legal Aid, you told Legal Aid that the eviction was done while you were on
vacation, trying to blame the mistake on me, but what you forgot is that I do not
process evictions unless you order me, and also you were the one that singed all the
paperwork before you left on vacation. Here again, the mistake was made, because
the bookeping department gives the notices for eviction out and then you do not file
thru with them. First tenants have no respect for eviction notices and that is why we
keep loosing money all the time.
71 12] You also drive the company car, and most of the time is not available for the
[p
rest of the staff that do inspections, banck deposits, etc. Libby has to use her car to
do FSS inspections or go to meetings, Sylvia has to use her car to do the bank
deposits, and I have to use my car all the time for inspections and to go to Alva. If I
tell you I need the car to do an inspection, is either you tell me to reschedule for
another day or will give me 10 minutes to come back, which it is impossible. You
get very upset if someone uses the car after 3:00 P.M., because you want the car for
you to leave a 3:30 P.M. most of the time. We do not consider that a company car, it
is your personal car.
72 13] Also, I had reported to you all the complaints we had received of Mr. Richard
[p
Wombwell, the Senior Aide you have at Barrett Park. There are plenty of verbal and
written complaints against Mr. Wombwell about him being unrespectful to tenants,
fresh with the spanish married women, and even denied the use of the LCHA lawn
mower to the tenants he does not like, or timed them with same. You said he was
going to help me with the tenants problems, collecting rent, delivering notices and
rent receipts, give out violations to the tenants, things that he has denied to do, but
on the other hand you had approved a lot of social activities, that he uses LCHA
money to buy refreshments and candy all the time. He also got a brand new TV and
a VCR with LCHA money for entertainment. I reported to you the time Mr.
Wombwell asked me if I could give violations to his "buddies" so they would not
get mad at him. Today, I had to write you a complaint about Mr. Wombwell asking
the bookeeper if I still work for LCHA, which make me think why someone that
does not even work for LCHA, because he is an employee for Dr. Ella Piper, knows
if I am going to be fired or not. On the other hand I heard the bookeeper suplying
him with all the updates about me.
73 14] The communication problems that I have with staff members, maintenance
[p
members, are all caused by you because you are a terrible instigator among all of us
in this office and that is very sad. You had always make us feel we do not worth
anything and nothing is appreciated.
74 15] You keep giving us a miserable raise if any every year, because there is no
[p
money, but then you went ahead and bought yourself a new computer that you
hardly look at it, the TV and VCR for Barrett Park, to keep Mr. Richard Wombwell
happy and also a few more toys.
75 16] Writing this type of letter is not me, but you had pushed me to do it, you had
[p
been very unfair with me and my co-workers and that LCHA could be a wonderful
place to work if things are done the right way and if we could accept our mistakes,
starting with you, instead of putting the blame on somebody else.
76 17] You had also mentioned to some staff members about the money I asked you
[p
to lend me to buy my car and I need to remind you that God is my witness I have
never asked you for that money, because I did not know that well to do something
like that. You offered me that money and told me that I could pay you anyway I
could and I accepted and also wrote my debt to you in a piece of paper that I signed,
compromising myself to give $100.00 every month. I have done this every months,
but since I had a problem this month and could not give you any money this month,
you even called me at my house on Tuesday, September 26, 1995 around 7:00 P.M.
to asked to borrow the money and made me feel real bad. I do not know what kind of
person you think I am, but even that I did not asked for that money, I will pay you
every single dollar you lent me, because I happen to be a decent and grateful person.
Even that this job and you have tried to change me, I'm still a good person inside,
that only fights back when she gets pushed or abused.
[p 18] I will like for you to take some time and think of all the good things and the
77
good atmosphere we could have in this office, instead of creating this miserable
environment.
78 19] The new Job Description you had given me on Tuesday, September 26, 1995,
[p
I will consider it as a revision to the first one you gave me, because I know the
things that you added to it, is because of the argument we had on September 20,
1995, because when you gave me the letter changing my title you never mentioned
about giving me a new job description.
Sincerely,
79
/s/L. Gonzalez
80
Luz N. Gonzalez
Property Manager
cc:
81
82 20] NOTE: I need to mention that when you hired me, it was for Pine Echo
[p
(Family and Elderly sites) and Barrett Park. When you fired Richard Brevick, you
had asked me if I could help you collecting the rent and I even expressed to you that
I will do only that because I knew nothing about Farmers Home Housing, but I
ended doing all the work and now you blamed me for the vacancies overthere too.
That is why you decided to add Charleston Park to the new job description.
BLACK, Circuit Judge, specially concurring:
83
In part IV.B. of the opinion, the Court holds that a government official who
implements a plan to discriminate against black persons in public housing and
fires a subordinate employee for refusing to discriminate pursuant to the plan
has no qualified immunity. I completely agree.1 I write separately because of
the explanation given for today's decision.
84
Part IV.B. of the opinion sets out two alternative bases for finding clearly
established law to overcome qualified immunity: first, the plain language of 42
U.S.C. 3617; and second, the clear command of 24 C.F.R. 100.400(c)(3),
which interprets 42 U.S.C. 3617. Section 3617 is a very general statute and is
not sufficiently fact-specific to satisfy the requirements of Lassiter v. Alabama
A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149-50 (11th Cir.1994) (en
banc). As this Circuit has made clear, it is the "exceptional case where the
words of a federal statute or federal constitutional provision will be specific
enough to establish the law applicable to particular circumstances clearly and to
Even if a regulation can be the basis of clearly established law, neither this
Circuit nor the Supreme Court has ever so held. Moreover, I doubt that a
regulation which on its face purports only to be an executive department's
"interpretation of [unlawful] conduct" can be the basis of clearly established
law.2 In the context of qualified immunity, I believe courts should not give
much weight to executive branch regulations interpreting statutes when the
regulations have not been held by a court to be accurate interpretations. At any
rate, 24 C.F.R. 100.400(c)(3) should not be deemed the source of clearly
established law in this case, where the Court today recognizes its application
for the first time.
86
87
On the other hand, we have recognized that in the extremely rare case a
government official's conduct may be so egregious, in fact evil, as to be
obviously contrary to federal law, so that no case law or statute needs to have
recognized previously that materially similar conduct is unlawful. The facts
alleged here, if true, make this that extremely rare case. More than a century
after the Civil War and more than a quarter century after the great crusade for
civil rights for black persons in this country, no government housing official
could reasonably believe that she may lawfully discriminate against black
persons on the basis of race, or that she might punish another public official for
refusing to discriminate in the course of her official duties against black persons
on the basis of race.
The district court also granted Moran's motion for summary judgment in her
official capacity and denied Gonzalez's motion for partial summary judgment as
to Gonzalez's contract claim. The sole issue on appeal, however, is whether the
district court erred in denying summary judgment to Moran in her individual
capacity
See id., Ex. A, Attach. 3, p 8, at 2 ("I never know who you will want me to
house even if they are next on the waiting list. If it's a white girl with a black
baby, you complain, if we have a vacancie on the lederly site, you do not want
me to put a black person on that site ...."); accord R1-33, Memorandum of Law
in Support of Motion for Summary Judgment of Defendant Moran in her
Individual Capacity, Ex. B, p 8, at 2. This letter from Gonzalez to Moran is
reproduced as Appendix A, infra. The quotations from the letter that appear
throughout this opinion are unedited
See App. A, p 9 ("[T]he times that you and me had argue is because you had
forced me to discriminate, or rip-off people....")
Gonzalez stated:
[F]or about 2 months I have been confronting Ms. Moran on things that she
want me to do and are against HUD rules and regulations and against the
Department of Labor.
The following are only some of those things:
....
7) I had to enforce the authority Ms. Moran gave me, to house two white girls
that came up on the waiting list, but as Ms. Moran opinion they were no good
just because they had babies from black men.
Example: Victoria Fisher--14153 Warner Circle
See App. A, p 1
See id., p 2
10
11
12
13
14
15
16
17
18
See id., p 30, at 7-8. Gonzalez also brought these two claims against LCHA and
against Moran in her official capacity. See id., pp 30, 34, at 7-8. Furthermore,
Gonzalez alleged that LCHA and Moran, in her official capacity, breached
Gonzalez's employment contract. See id., p 39, at 9
19
R1-44, Order, at 2. The district court also granted Moran's motion for summary
judgment in her official capacity and denied Gonzalez's motion for partial
summary judgment as to Gonzalez's contract claim. Id
20
Even where a public employee's speech does not touch upon a matter of public
concern, that speech is not "totally beyond the protection of the First
Amendment," Connick, 461 U.S. at 147, 103 S.Ct. at 1690, but "absent the
most unusual circumstances, a federal court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee's behavior," id
21
22
even though Myers did not publicize the questionnaire and even though no
evidence indicated that the public, at the time Myers circulated the
questionnaire, knew about the District Attorney's unlawful practice of
pressuring his employees to work on political campaigns. We reject Moran's
contention that Peterson v. Atlanta Hous. Auth., 998 F.2d 904 (11th Cir.1993),
indicates a contrary rule. Although Peterson's inter-office speech did concern an
issue that had received media scrutiny, see id. at 916, the court specifically
noted that public awareness of the problem was not necessary to satisfy the
public concern requirement, see id. at 917 n. 25; see also Morgan v. Ford, 6
F.3d 750, 754 n. 5 (11th Cir.1993) ("[A] court cannot determine that an
utterance is not a matter of public concern solely because the employee does
not air the concerns to the public."); Deremo v. Watkins, 939 F.2d 908, 911 n. 3
(11th Cir.1991) (stating that an employee's effort to communicate her concerns
to the public is a relevant, but not dispositive, element in the public concern
analysis).
23
See, e.g., App. A, p 3 ("[W]hen things get a little blurry, you turn into a very
critical, and verbally abusive person."); id., p 4 ("I have seen and also received a
lot of verbal abuse along with my co-workers."); id., p 5 ("[Y]ou have no
consideration for your staff."); id., p 14 ("[Y]ou are a terrible instigator among
all of us in this office ...."); id., p 15 (stating that Moran only gives "miserable
raise[s]"); id., p 16 (criticizing Moran for blaming others for her own mistakes);
id., p 18 (blaming Moran for "creating this miserable environment")
24
25
See App. A, pp 7-8 (stating that Gonzalez becomes aggravated at work and
cannot predict whether Moran will want to rent to certain tenants); id., p 8
(stating that Moran complains to Gonzalez when Gonzalez rents in a nondiscriminatory manner); id., p 9 (stating that Moran and Gonzalez argue when
Moran forces Gonzalez to break the rules)
This portion of the letter thus differs from the element of the employee's speech
in Connick that satisfied the public concern requirement. See 461 U.S. at 149,
103 S.Ct. at 1691. Even though Myers circulated the questionnaire as a result of
her employment grievance, the actual question about whether assistant district
attorneys were forced to work on political campaigns did not refer explicitly to
Myers's self-interest.
26
See, e.g., id., p 6 ("[Y]ou do not follow Rules and Regulations ..., which causes
so much confusion not only to me, also to every person in this office."); id., p
10 ("You can not keep blaming me for this place starting to fall apart. You owe
all this to yourself, because you are the one that bend the rules all the time.");
28
29
This jurisprudence is not directly applicable here because Gonzalez brought her
Fair Housing Act claim under 42 U.S.C. 3617 and 3613, not under 42 U.S.C.
1983
30
31
The fact that 3617 is silent as to qualified immunity indicates that Congress
did not intend to preclude the common-law qualified immunity defense in
3617 actions. Cf. Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606,
2613, 125 L.Ed.2d 209 (1993) ("Certain immunities were so well established in
1871, when 1983 was enacted, that we presume that Congress would have
specifically so provided had it wished to abolish them.") (internal quotation
omitted); Fact Concerts, 453 U.S. at 258, 101 S.Ct. at 2755 ("One important
assumption underlying the Court's decisions in this area is that members of the
42d Congress were familiar with common-law principles, including defenses
previously recognized in ordinary tort litigation, and that they likely intended
these common-law principles to obtain, absent specific provisions to the
contrary.")
32
The substance of 3617: (1) appeared in the amendment to H.R. 2516 that was
introduced and later tabled by Senators Mondale and Brooks, see 114 Cong.
Rec. at 2270; (2) was included in Senator Dirksen's approved substitute
amendment to H.R. 2516, see 114 Cong. Rec. at 4573; and (3) was part of the
bills passed by the Senate, see id. at 5992, and the House of Representatives,
see id. at 9621; see also Pub.L. 90-284, Title VIII, 817, 82 Stat. 89 (1968). No
aspect of the legislative history suggests that Congress intended to deprive
public officials of the ability to assert a qualified immunity defense in a 3617
action. See, e.g., S.Rep. No. 721 (1968), reprinted in 1968 U.S.C.C.A.N. 1837
(concerning relevant public law, but not addressing 3617)
33
See Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d
396 (1982) (stating that qualified immunity is necessary to avoid "the expenses
of litigation, the diversion of official energy from pressing public issues, and
the deterrence of able citizens from acceptance of public office")
34
See Lussier v. Dugger, 904 F.2d 661, 663-64, 670 n. 10 (11th Cir.1990) (the
Rehabilitation Act of 1973); see also Cullinan v. Abramson, 128 F.3d 301, 30712 (6th Cir.1997) (the Racketeer Influenced and Corrupt Organizations Act),
cert. denied, --- U.S. ----, 118 S.Ct. 1560, 140 L.Ed.2d 792 (1998); Torcasio v.
Murray, 57 F.3d 1340, 1343 (4th Cir.1995) (the Americans with Disabilities
Act and the Rehabilitation Act of 1973); Lue v. Moore, 43 F.3d 1203, 1205
(8th Cir.1994) (the Rehabilitation Act of 1973); McGregor v. Louisiana State
Univ. Bd. of Supervisors, 3 F.3d 850, 862 & n. 19 (5th Cir.1993) (the
Rehabiliation Act of 1973); Cronen v. Texas Dep't of Human Servs., 977 F.2d
934, 939-40 (5th Cir.1992) (Food Stamp Act of 1977); Doe v. Attorney
General, 941 F.2d 780, 797-99 (9th Cir.1991) (the Rehabilitation Act of 1973);
Christopher P. by Norma P. v. Marcus, 915 F.2d 794, 798-801 (2d Cir.1990)
(the Education for All Handicapped Children Act of 1975); P.C. v.
McLaughlin, 913 F.2d 1033, 1040-42 (2d Cir.1990) (the Education for All
Handicapped Children Act of 1975 and the Rehabilitation Act of 1973);
Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1569-70 (5th
Cir.1984) (the Sherman Antitrust Act); National Black Police Ass'n v. Velde,
712 F.2d 569, 574-80 (D.C.Cir.1983) (Title VI of the Civil Rights Act of 1964
and the Crime Control Act of 1973). But see Samuel v. Holmes, 138 F.3d 173,
178 (5th Cir.1998) (holding that qualified immunity is not an available defense
in retaliation claims brought under the False Claims Act). We stress, however,
that our opinion in this case should not be construed to address whether
qualified immunity is available in actions brought under statutes other than
3617
35
In Burrell, this court held that a public official sued in an individual capacity
under 42 U.S.C. 1985(3) may not assert a defense of qualified immunity. The
court reasoned:
Unlike in section 1983 actions, public officials ... will not be subject to liability
under section 1985(3) unless their actions were motivated by "some racial, or
perhaps otherwise class-based, invidiously discriminatory animus." ... We hold
that this additional safeguard obviates the need for granting public officials
qualified immunity in section 1985(3) actions.
970 F.2d at 794. Because section 3617, like 42 U.S.C. 1985(3), requires a
showing of discriminatory intent, see Sofarelli v. Pinellas County, 931 F.2d
718, 722-23 (11th Cir.1991), Burrell might suggest that the qualified immunity
defense is not available in a 3617 action.
For several reasons, we decline to extend Burrell 's holding to section 3617
actions. Initially, we note that this court has not extended Burrell to 42 U.S.C.
1981 actions even though 1981, under General Building Contractors Ass'n v.
Pennsylvania, 458 U.S. 375, 386-91, 102 S.Ct. 3141, 3147-50, 73 L.Ed.2d 835
(1982), requires a showing of purposeful discrimination. See Johnson v. City of
Fort Lauderdale, 126 F.3d 1372, 1379-80 (11th Cir.1997) (holding that
defendant officials were entitled to qualified immunity on 1981 claim but,
under Burrell, could not assert qualified immunity on 1985(3) claim). In light
of the Johnson court's implicit decision to limit Burrell, we hesitate to extend
Burrell here.
Furthermore, our research reveals no case other than Burrell in which a court of
appeals or the Supreme Court has barred the qualified immunity defense on the
ground that the statute creating liability requires a showing of discriminatory
intent. In other circuits, for example, public officials may assert the qualified
immunity defense in a 1985(3) action. See Southard v. Texas Bd. of Criminal
Justice, 114 F.3d 539, 555 (5th Cir.1997); Brown v. City of Oneonta, N.Y.,
Police Dep't, 106 F.3d 1125, 1133 (2d Cir.1997); Vaughn v. U.S. Small
Business Admin., 65 F.3d 1322, 1324-30 (6th Cir.1995); Simmons v. Poe, 47
F.3d 1370, 1376-78 (4th Cir.1995); Bisbee v. Bey, 39 F.3d 1096, 1101-02 (10th
See also Hansen v. Soldenwagner, 19 F.3d 573, 575 (11th Cir.1994) ("Preexisting law--whether it be case law or statutory law--must be available to
instruct in a concrete way the government agent, given the circumstances.");
Leeks v. Cunningham, 997 F.2d 1330, 1333 (11th Cir.1993) (determining
whether clear "statutory or case law" existed at the time of the defendant's
actions); accord Samaritan Inns, 114 F.3d at 1239 (affirming the district court,
which had ruled, without relying on materially similar pre-existing case law,
that the defendants did not have qualified immunity in a 3617 case)
37
Sofarelli, 931 F.2d at 722-23, confirms that 3617 permits a plaintiff to sue
public officials who interfere with the plaintiff's efforts to provide housing on a
race neutral basis as long as the plaintiff can allege and establish that race
played some role in the defendant's conduct. See also Baytree of Inverrary
Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir.1989)
(stating that non-minority developers have standing to assert 3617 claims
against local government officials). Even though Sofarelli probably raises a
question about the legality of Moran's alleged conduct in this case, because
Sofarelli involved different facts, it alone cannot, under our precedent, clearly
establish the relevant pre-existing law because it would not compel the
conclusion that firing an employee for failing to discriminate against tenants on
the basis of race violates the law. See Lassiter, 28 F.3d at 1150
38
The district court in Baggett considered whether 3604 and 3617, standing
alone, without the benefit of illuminating case law, sufficiently had established
the relevant pre-existing law to permit the plaintiffs to overcome the
defendants' assertion of qualified immunity, as contemplated in Lassiter.
Baggett, 1997 WL 151544, at * 22. The court explained that, in light of the
statute, "no competent government agent reasonably could believe that truly
egregious acts of discrimination ... would not violate federal law," but
concluded that because the plaintiffs' claims posed a "sophisticated legal issue"
the defendants remained immune. Id. Gonzalez's claims in this case, however,
present no such complications. Gonzalez has alleged and offered evidence that
Moran fired her because Gonzalez refused to discriminate against tenants on the
basis of race, precisely the type of egregious discrimination that the plain
language of the statute warns against and that the Baggett court explained no
competent official could reasonably claim federal law permitted. Finally, and to
avoid confusion, we do not cite Baggett as a case that clearly establishes the
law on this point; our precedent firmly states that a district court opinion cannot
accomplish that result, see Jenkins, 115 F.3d at 826 n. 4. We cite the case only
as a persuasive illustration that the provisions at issue here, standing alone,
clearly establish the law in a case alleging conduct so plainly at odds with the
statutes
39
Although Gonzalez herself did not cite 100.400(c)(3) before the district court
or initially on appeal, we must evaluate the clearly defined scope of 3617 sua
sponte, regardless of whether the implementing regulation was proffered as
relevant legal authority. In Elder v. Holloway, 975 F.2d 1388 (9th Cir.1991),
rev'd, 510 U.S. 510, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994), the plaintiff in a
1983 action appealed the district court's determination that the defendants
were entitled to qualified immunity. The plaintiff failed to inform either the
district court or the Ninth Circuit of factually similar pre-existing case law that
indicated the illegality of the defendants' actions. See id. at 1390. Although the
Ninth Circuit noted that a pre-existing case appeared to proscribe defendants'
actions, see id. at 1391, the court held that a plaintiff may not benefit on appeal
from precedent that neither he nor the district court cited. See id. at 1394-96.
The Supreme Court reversed, holding that an appellate court is required to
determine the clearly established law sua sponte, based on "its 'full knowledge
of its own [and other relevant] precedents,' " 510 U.S. at 516, 114 S.Ct. at 1023
(citing Davis v. Scherer, 468 U.S. 183, 192 n. 9, 104 S.Ct. 3012, 3018 n. 9, 82
L.Ed.2d 139 (1984)) (brackets in Elder). Accordingly, we must determine the
clearly established contours of 3617 sua sponte
40
See also W.B. v. Matula, 67 F.3d 484, 500-01 (3d Cir.1995) (examining
regulations to determine parameters of clearly established law); Torcasio v.
Murray, 57 F.3d 1340, 1350-52 (4th Cir.1995) (stating that administrative
guidelines "may provide some evidence that it is ... established that the ADA
applies to state prisons"); Doe by and through Doe v. Petaluma City Sch. Dist.,
54 F.3d 1447, 1452 (9th Cir.1995) ("[A]n obligation to act might arise from
something other than decisional law, such as a regulation or policy that an
official is legally bound to follow.")
41
42
The special concurrence also expresses "doubt that a regulation which on its
face purports only to be an executive department's 'interpretation of [unlawful]
conduct' can be the basis of clearly established law." Special Concurrence at
1311. The regulation at issue in this case, however, is more than a mere
interpretation: it is binding law. See King v. Housing Auth., 670 F.2d 952, 954
(11th Cir.1982) (holding that HUD has the authority to promulgate binding
regulations) (citing statute under which 100.400 promulgated); 24 C.F.R.
100.400(c) ("Conduct made unlawful under [ 3617] includes, but is not limited
to, the following: [listing types of unlawful conduct].") (emphasis added)
43
44
In fact, Moran's Supplemental Brief all but abandons any attempt to argue that
the regulation is ambiguous. Instead, Moran argues that the regulation does not
clearly establish that the Fair Housing Act prevents a public official from firing
an employee for any reason or for insubordination. See Moran's Supp. Br. at 56. This argument misses the point. As long as Gonzalez presents evidence in
support of her allegation that Moran fired her for refusing to engage in racial
discrimination, and that evidence is sufficient to survive a motion for summary
judgment, see infra Part IV.B.2, Moran's actual motivation for firing Gonzalez
presents classic questions of fact and credibility that the jury will have to
resolve. For purposes of resolving the issue of qualified immunity at the
summary judgment stage of the case, we must view the evidence in the light
most favorable to Gonzalez and determine whether her allegations, if true,
would violate clearly established law
45
The special concurrence advances the attractive proposition that since the Civil
War and the more recent "great crusade for civil rights," racial discrimination in
rental practices is so inherently evil as to bar an assertion of qualified immunity
without the need for supporting case law or legislation. Special Concurrence at
1311. Certainly, we agree that racial discrimination, in any context, is evil and
wish that the concept was as universally acknowledged and readily accepted as
the special concurrence suggests. Regrettably however, in the years since the
Civil War and the adoption of the Thirteenth, Fourteenth, and Fifteenth
Amendments, the recognition of equality in all aspects of life has neither been
axiomatic nor obvious, see, e.g., Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct.
1138, 41 L.Ed. 256 (1896) (establishing the separate but equal doctrine almost
30 years after the ratification of the Fourteenth Amendment), but has emerged
only gradually, see, e.g., Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (1954) (striking down segregation in public schools more than 80
years after the Fourteenth Amendment); Loving v. Virginia, 388 U.S. 1, 87
S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (striking down--only 30 years ago--a
statute that criminalized interracial marriage). Indeed, Congress has recognized
the continuing need for legislation to eradicate the cancer of racial
discrimination by enacting measures such as the Voting Rights Act, Title VII,
and, in this context, the Fair Housing Act
We also have no quarrel with the special concurrence's observation that, in the
appropriate case, a government official's conduct might be so egregious that the
violation of federal law is obvious, even in the absence of case law or
legislation recognizing the illegality of materially similar acts; deference to the
Supreme Court's holdings requires nothing less. See Lanier, 520 U.S. at ----,
117 S.Ct. at 1225-26. Unlike the conduct at issue in Lanier, which was so
repugnant that it had escaped prior contemplation in the relevant sources of
authority, the conduct in this case is both outrageous and specifically addressed
in the Fair Housing Act. Standing alone, or as further clarified by regulation 24
C.F.R. 100.400(c)(3), the Fair Housing Act "stake[s] out a bright line" such
that the law prohibiting racial discrimination in rental practices was clearly
established in the "concrete and factually defined context" we required in
Lassiter, 28 F.3d at 1149-50. As a result, Moran's assertion of qualified
immunity must fail, and we need not consider this additional teaching of Lanier.
46
47
48
49
51
52
53
Similarly, Moran did not respond effectively to the allegation that Gonzalez
resisted Moran's orders to "skip" individuals on the housing waiting list
because of race. See id., p 12, at 5. Moran simply contended that this allegation
was "founded upon a single instance in which defendant Moran purportedly
told the plaintiff not to offer low-income housing to an individual who was felt
to be suffering from a mental disorder." R1-33, Memorandum of Law in
Support of Motion for Summary Judgment of Defendant Moran in her
Individual Capacity, at 8
Section 3617, however, prohibits interference with the housing rights of the
mentally disabled. See 24 C.F.R. 100.400(c)(3) (stating that 3617 prohibits
the dismissal of an employee based on the employee's effort to provide rental
housing to a person with a handicap); see also 42 U.S.C. 3617 (prohibiting
interference with efforts to assist others in enjoying rights established under
3604); 42 U.S.C. 3604(f) (prohibiting discrimination based on renter's
handicap); 42 U.S.C. 3602(h)(1),(3) (defining handicapped person as person
with substantially limiting mental impairment or person regarded as such).
Because Moran did not dispute that Gonzalez resisted Moran's orders to "skip"
individuals on the housing waiting list, Moran's admission that she ordered
Gonzalez to skip an individual based on that person's mental condition tends to
support, rather than refute, Gonzalez's claim that Moran fired her "in retaliation
of her complaints and refusal to participate in the discriminatory rental practices
of the Defendants." R1-15, Amended Complaint, p 30, at 7-8.
54
55
Judgment, Ex. A, p 5, at 1
56
57
See App. A
58
See App. A, p 8
59
See App. A, p 9
60
61
62
63
64
See App. A, p 9 ("[T]he times that you and me had argue is because you had
forced me to discriminate, or rip-off people ...."); see also id., p 8 ("I never
know who you will want me to house even if they are next on the waiting list.
If it's a white girl with a black baby, you complain, if we have a vacancie on
the lederly site, you do not want me to put a black person on that site....")
65
66
I also concur with the majority in parts I, II, III, and IV.A. of the opinion
the law.")